Gujarat High Court
Ghanshyambhai Harmanbhai Patel vs Purnaben Ashokbhai Joshi on 9 May, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/663/2018 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 663 of 2018
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2025
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 663 of 2018
With
R/FIRST APPEAL NO. 1087 of 2018
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2018
In R/FIRST APPEAL NO. 1087 of 2018
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GHANSHYAMBHAI HARMANBHAI PATEL & ANR.
Versus
PURNABEN ASHOKBHAI JOSHI
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Appearance:
MR DHRUV K DAVE(6928) for the Appellant(s) No. 1,2
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
Order in Civil Application (for Condonation of Delay) no.2 of 2025 in
First Appeal no.663 of 2018:
By this application, the applicants have prayed for condoning
the delay of 791 days caused in preferring the application for
bringing the heirs of the applicant no.2 on record of the captioned
proceedings.
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C/FA/663/2018 ORDER DATED: 09/05/2025
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2. Mr Dhruv K. Dave, learned advocate for the applicants states
that the delay is bona fide. It is submitted that steps were taken and
in the process, there occurred a delay. The proposed applicant
being the legal heir, was unable to take necessary steps owing to
certain commitment as indicated in paragraph 5 of the captioned
application. Thereafter, steps were taken promptly; however, the
delay occurred. Request is made to condone the delay.
3. Mr Yash Mehta, learned advocate for Mr Vilav K. Bhatia,
learned advocate for the sole respondent, has no objection if the
delay is condoned and the proposed heir of the appellant no.2, is
brought on the record.
4. Considering the explanation offered in the application, the
delay deserves to be condoned and is hereby condoned. Civil
Application, succeeds and is accordingly, allowed. No order as to
costs.
Civil Application (for bringing heirs) no.1 of 2025 in First Appeal
no.663 of 2018:
By this application, the applicant being the sole legal heir of
the appellant no.2, prays for impleadment as appellant no.2.1 in the
captioned First Appeal.
2. Mr Dhruv K. Dave, learned advocate for the applicants has
invited the attention of this Court to the death certificate of the
appellant no.2, who passed away on 07.12.2022. Together with the
application, the applicant, has also tendered the affidavit indicating
the family tree.
3. It is submitted that the mother of the proposed appellant, got
NEUTRAL CITATION
C/FA/663/2018 ORDER DATED: 09/05/2025
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divorced in the year 2002 and subsequent thereto, she has
remarried. In support thereof, Mr Dhruv K. Dave, learned advocate,
has filed the affidavit, seeking withdrawal as well as placing on
record the documents, i.e. memorandum of marriage, decree dated
30.10.2002 passed by the learned Principal Senior Civil Judge,
Vadodara as well as the certificate of marriage dated 07.12.2012. It
is urged that the proposed applicant, as indicated in paragraph 6 of
the application, may be impleaded as appellant no.2.1.
4. Mr Yash Mehta, learned advocate for Mr Vilav K. Bhatia,
learned advocate for the respondent, has no objection, if the
proposed applicant is impleaded as appellant no.2.1 in the
captioned proceedings.
6. Having regard to the averments made, so also the documents
and the affidavits, captioned Civil Application, deserves to be
allowed and is accordingly, allowed. No order as to costs. The heir,
as indicated in paragraph 6 of the captioned application, is directed
to be brought on record.
7. Necessary amendment, to be carried out forthwith.
Order in First Appeal nos.663 of 2018 and 1087 of 2018:
Mr Dhruv K. Dave, learned advocate for the appellants in First
Appeal no.663 of 2018 states that the appellants, were the original
defendants in Special Civil Suit no.288 of 2014 filed by the original
plaintiff, seeking specific performance of the agreement to sell. The
suit came to be dismissed; however, the defendants, i.e. the
appellants, were directed to return the earnest money of Rs.25 lac
each, i.e. total Rs.50 lac with simple interest at the rate of 6% from
the date of filing of suit, i.e. 16.05.2014.
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C/FA/663/2018 ORDER DATED: 09/05/2025
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2. Mr Dhruv K. Dave, learned advocate and Mr Yash Mehta,
learned advocate for Mr Vilav K. Bhatia, learned advocate, jointly
submitted that the plaintiff and the defendants, since both were
aggrieved, have filed appeals, namely, First Appeal no.663 of 2018
was filed by the defendants being aggrieved by the direction of the
refund; whereas original plaintiff has filed First Appeal no.1087 of
2018 being aggrieved by the refusal of specific performance.
3. It is submitted that now, the parties, have settled the issue
and in view thereof, the original plaintiff and the defendants, seek
permission to withdraw the respective appeals. In support whereof,
Mr Dhruv K. Dave, learned advocate has tendered the affidavit of
the power of attorney of the appellant no.1 as well as the affidavit
for withdrawal by the newly added appellant no.2.1. Similarly, the
original plaintiff has also tendered affidavit. As per the affidavits, the
parties, do not propose to pursue the appeal and seek permission to
withdraw the same. The affidavits, are directed to be taken on
record.
4. Relevant extracts of the affidavit of the original plaintiff read
thus:-
"2. That during the pendency of the present appeal, the dispute
between myself and the opponent has been resolved amicably
through mutual discussions and understanding. The settlement
has been arrived at voluntarily, without any coercion, pressure, or
undue influence from any side. All the issues raised in the present
appeal now stand resolved to the satisfaction of both parties.
3. That in light of the amicable settlement, I do not wish to pursue
or continue with the proceedings in the present appeal. I have no
further grievance subsisting in respect of the subject matter of the
appeal that would warrant adjudication by this Hon'ble Court."
Relevant extracts of the affidavit of the power of attorney of
the appellant no.1 read thus:
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C/FA/663/2018 ORDER DATED: 09/05/2025
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"2. That upon decree passed by the Learned Trial Court, the same
was challenged before this Hon'ble Court by the captioned appeal.
I submit that the parties have amicably settled the dispute and
therefore the Judgment under challenged may be confirmed.
3. That this affidavit is executed of my own free will, without any
force, pressure, or coercion from any person or party. That I affirm
that this withdrawal is final and irrevocable, and I shall not assert
any claim in the future pertaining to the subject matter."
Relevant extracts of the affidavit of the appellant no.1 read
thus:
"4. That upon decree passed by the Learned Trial Court, the same
was challenged before this Hon'ble Court by the captioned appeal.
I submit that the parties have amicably settled the dispute and
therefore the judgment under challenged may be confirmed.
5. That this affidavit is executed of my own free will, without any
force, pressure, or coercion from any person or party. That I affirm
that this withdrawal is final and irrevocable, and I shall not assert
any claim in the future pertaining to the subject matter."
4. In view thereof, the respective appeals, namely, First Appeal
no.663 of 2018, so also First Appeal no.1087 of 2018, are permitted
to be withdrawn. No order as to costs.
5. Connected Civil Applications, also stand disposed of.
6. Record & proceedings, if any received, be sent back to the
Court concerned.
(SANGEETA K. VISHEN,J)
(MOOL CHAND TYAGI, J)
BINOY B PILLAI
